When President Obama released the so-called torture memos from the Bush administration, there was an immediate call to indict the lawyers responsible for the memos. It doesn't look like that will happen, but the authors of the memos might end up in court anyway as defendants in civil lawsuits rather than criminal trials.
District Court Judge Jeffrey White of the Northern District of California allowed most of Jose Padilla's suit against John Yoo, one of the authors of the memos, to go forward on Friday, despite Yoo's motion to dismiss the case. Padilla, who is serving a 17 year sentence for a dirty bomb plot, alleges that Yoo, by drafting memos meant to act as a legal shield for constitutional violations, became personally responsible for those violations.
Judge White's decision represents the first judicial opinion holding that goverment lawyers are potentially responsible for detainee abuse. Padilla claims that military officials and personnel subjected him to
years of physical and psychological mistreatment that violated numerous
Yoo moved to dismiss the case on the
grounds that the court should not recognize Padilla's claim and that
Yoo was entitled to qualified immunity. Judge White rejected Yoo's
arguments, finding that Yoo's drafting of the memos arguably "set in
motion a series of events that resulted in the deprivation of Padilla's
The decision has already sparked
controversy, with some wondering how the issuance of a legal opinion as
part of policy development could render the authoring attorney liable
for constitutional abuses that result from the resulting policies.
White stated that Yoo went beyond the role of an attorney by crafting
legal opinions designed to facilitate the plans for harsh
interrogations that the Bush administration had already decided upon.